HC Deb 18 August 1857 vol 147 cc1785-812

Order for Committee read.

House in Committee: MR. FITZROY in the Chair.

Clause 53 (Parties at liberty to marry again).


said, it was with great pain he had to communicate to the Committee that his right hon. Friend and Colleague (Mr. Gladstone), who had an important Amendment coming next in order, had been subjected to a very severe domestic calamity, the apprehension of which had prevented his attendance yesterday, and the actual occurrence of which would now render his presence impossible. Under these circumstances he had to throw himself upon the indulgence of the Committee in presuming, at very short notice, to bring before them an Amendment which ought to have been in so much better hands. The Amendment of which his right hon. Friend and Colleague had given notice was to leave out all the words after "marry again," in the last line but one—namely, "as if the prior marriage had been dissolved by death"—for the purpose of inserting "in the office of the registrar." The effect of that would be that the respective parties in a divorce case would be allowed under the clause to marry again; but they would be obliged to be married before the superintendent registrar. He might take that opportunity of saying, that although the words he had read were quite sufficient to raise the discussion, yet he apprehended it would be necessary to add, in the event of their being carried, words for the purpose of showing distinctly that marriages before the registrar should take place under the conditions of an Act passed in the last Session, by which the marriage in the office of the registrar did not in any way preclude the religious ceremony afterwards, if the parties could procure a clergyman of the Church of England or a minister of any other denomination to perform it. Notice had been given of other Amendments, the effect of which would be to leave the parties divorced to be married in the ordinary way, but to exempt from penalties any clergyman who should refuse so to marry them. Now, the hon. and learned Attorney General, in an early part of these debates, pointed out the inexpediency of enacting a law and in the same breath providing exceptions for persons who did not obey it. If the Com- mittee were driven to that alternative he thought reasons might be shown for its adoption; but he so far agreed with the hon. and learned Attorney General that he would prefer putting the law on such a footing that it would not be necessary for any one to claim an exemption under it. As far as the clergy and the person seeking marriage were concerned, the Amendment which he intended to propose on behalf of his right hon. Friend and Colleague came exactly to the same point as those to which he had just referred. Divorced persons going before a registrar would be enabled under his Amendment to be married, and although they could not under the Act of last Session compel any clergyman to add the religious ceremony, yet that was common to all the other Amendments, which expressly provided that no clergyman should be obliged to marry them. The superiority of his Amendment consisted in its allowing the law to be carried out in a regular manner, without the necessity of exempting any one from obeying it, and obviating the objections pointed out by the Attorney General. It had been represented as hard to subject divorced persons to what was deemed an inferior mode of becoming married. He asserted, on the other hand, that when the Act of last Session was passed, marriage before a registrar was put upon an equality with marriage in a church, for the express purpose of meeting the conscientious and very reasonable scruples of Dissenters. It was open to any person to superadd to the civil ceremony any form of religious sanction which they thought fit. Considering the religious differences which existed in England at the present day, he saw no reason why every marriage should not commence with the civil ceremony; but, at any rate, they had no right to say that marriage before a registrar would place parties in an inferior position, especially when they would have an opportunity of superadding the religious ceremony in the event of their being able to induce a clergyman to perform it. The Act of last Session contained a recognition of two principles important to his present argument. One was that, notwithstanding all the forms which the Act prescribed had boon gone through, no minister of religion should be obliged to take notice of those forms, or solemnize marriages which were initiated in the office of a registrar; in other words, ministers of religion were relieved from the obligation of performing the religious ceremony over those who commenced their marriage not in accordance with the mode prescribed by the denomination to which they belong. The other was that persons who were desirous to add the religious ceremony ordained by the Church might do so, if they could induce a clergyman to perform it, not only to the notice commenced in the office of the registrar, but to the actual marriage completed before that functionary. He held, therefore, that the provisions of the Marriage Act, applying as they did in both directions, giving a precedent for respecting the conscientious scruples of clergymen, and at the same time affording the divorced persons who might be remarried before a registrar all the advantages of the religious ceremony, went far to remove the various objections which had been stated against his Amendment. It was not necessary to enter into much argument to prove that, grave religious scruples were entertained by the clergy at large with respect to the law of divorce, though at the same time he was ready to admit that they differed in intensity. Some of the clergy entertained conscientious scruples against remarrying any person whose previous marriage had been dissolved by divorce. Others, again, believed they were prohibited from marrying the guilty party, while others objected to marry the two persons who had been parties to the act which had led to the dissolution of the marriage. To one of those classes the large majority of the clergy of the Church of England belonged, and their opinions, he conceived, were not to be utterly disregarded. The conscientious scruples of the clergy had been recognized upon a much less important matter in the course of last year, and in following the same course upon the present occasion no injury would be done to any party, as whenever a clergyman could be found who did not entertain objections to such marriages the parties could obtain the advantage of the religious rite. It must be remembered too, that if parties whose conduct had led to a dissolution of their previous marriage were placed in a somewhat inconvenient position they had not much to complain of; for it would be too much to expect that persons who had been guilty of such an offence should be placed upon exactly the same footing as persons whoso conduct had been irreproachable. Moreover, he believed that in scarcely one case out of 5,000 was the party complaining entirely free from the imputation of having in some measure contributed to the unfor- tunate result. This Bill could not be regarded as the end of legislation. In future Sessions there would be efforts to establish fresh causes of divorce, and as those causes were multiplied so would the objections of the clergy to remarriage be increased. At present the country was approaching rapidly to a complete distinction between the civil and the religious aspect of marriage, and it would be a mere superstition now to believe that any proceedings in a court of justice could have any effect upon the religious character of the marriage contract. By adopting the Amendment he proposed, Parliament would be confining itself to its legitimate functions of civil legislation, leaving the religious question to be dealt with by the clergy. The lower order of the people, especially in the country districts, had a high notion of marriage as a religious ceremony—they thought that it excused all previous faults, and to legalize the intermarriage of adultrous persons would, he feared, lead to very lax ideas of the wickedness of seducing a neighbour's wife. If the Bill, as it stood, were forced upon the clergy, he must say, without in the least intending to hold out a threat, that he believed the feeling of that body was such that it would be a most important step towards producing a severance of that connection between the Church and the State which it was so desirable to see maintained. Let them recollect the effect of a similar step in the break up of the Kirk of Scotland. A timely concession might have prevented that schism—a concession made now might prevent a similar disruption in the Church of England. He proposed the Amendment which had been suggested by his right hon. Colleague, believing that it tended to prevent such an event as he had just alluded to, that it kept Parliament within the range of its proper functions, and that it would tend to mitigate the great social evils which were to be apprehended from facilitating the granting of divorces. He also believed this Amendment would meet the purpose of all the other Amendments, the object of which was to protect the clergy form an oppression upon their consciences; and upon that, and the other grounds he had mentioned, he asked the House to give the proposition the same active consideration which he was sure it would have received had it had the advantage of being proposed by his right hon. Colleague.

Amendment proposed in p. 13, lines 15 and 16, to leave out the words "as if the prior marriage had been dissolved by death," in order to insert the words "in the office of the Registrar."


said he was quite sure he expressed the feelings of all the hon. Members on that (the Ministerial) side of the House, when he gave utterance to his deep regret at the calamity which had deprived them of the presence of one who was the chief ornament of the debates of that assembly. There was no man who more admired the ability and eloquence of that right hon. Gentleman (Mr. Gladstone), or who could have more pleasure in bearing testimony to his distinguished talents than himself (the Attorney General), but at the same time he did not think the case had lost anything by being committed to his hon. Friend, considering the calm, impressive, and judicial—he probably might add—successful mode in which the merits of the case had been presented to the Committee. He regarded this as a most important question, and one which they were bound to approach in the most careful and deliberate manner. He would desire, therefore, to express to the Committee the difficulties which he felt with regard to the proposal now before them, not with a view to defeat that proposal, but to assist, as far as lay in his power, in giving the Committee a right apprehension of its bearings, and to ascertain, if possible, the best method of raising the important question pointed at in various Amendments on their paper—that question being whether there should be a legal obligation on any clergyman of the Church of England, who did not desire to marry divorced parties, to celebrate such a marriage. The Committee would observe that the proposition before them involved in the first place a provision that the divorced parties were to marry through the medium of the registrar, both the guilty and the innocent party being involved in this arrangement. Then, in the second place, by striking out the words "as if the prior marriage had been dissolved by death," they arrived at the conclusion that the alteration was based upon the doctrine that marriage in the eye of the Church of England was to be regarded as an indissoluble engagement. Now, he submitted that on these two grounds the Amendment was highly objectionable. But he would further endeavour to explain to the Committee the grounds of objection that would arise from adopting the form of words laid down in the Amendment. They would observe that the marriage was to take place "in the office of the registrar." That was an affirmative proposition. Let them imagine a case where the parties had been divorced; they might go out to the world and mix in society; but some time afterwards the husband might form another engagement and marry in facie ecclesiœ another woman. Would that marriage be good or not, the woman being totally ignorant of the husband having been previously divorced? According to the sense of the proposition before them, he would say that the marriage would be good, because the proposition contained no negative words to the effect that the parties should not marry elsewhere. But suppose it was meant to alter the words, giving them a negative form, which would prohibit the parties marrying elsewhere, what would be the effect? The man and woman would go out to the world, and some years afterwards, perhaps, the man might contract a marriage with an innocent woman—it might be in a high condition of life, though that in no way affected the question. They had gone out into the world with the capacity to commit fraud of the cruelest kind, because the man might marry a woman who knew nothing of the prohibition that attached to him. In such a case the innocent woman would be deceived in the most cruel and heartless manner, because it would be no marriage at all, and her innocent offspring would be bastards. All this would spring from putting a man and woman in a negative situation, from which no benefit could result. Now, he did not think that a desirable state of things. His conclusion was that they could not arrive at a right decision on the great question they had to settle—that of the reluctance of clergymen of the Church of England to marry divorced persons—without having regard to the Amendments of the right hon. Gentleman the Member for the University of Cambridge (Mr. Walpole), and that of the gallant Major the Member for Harwich (Major Warburton). He had pointed out one difficulty arising from the proposition before them. He would shortly advert to another. Marriage might be solemnized in three or four different ways according to the law. There was the form of celebration which took place in the face of the Church of England; but another was by the different clergymen of Dissenting denominations in registered chapels,—as, for example, in the chapels of Quakers, in the synagogues of the Jews. Now, did his hon. Friend mean to say that divorced parties were not to go and be married in a chapel belonging to their own persuasion? And yet his Amendment would prohibit all such marriages. His humble advice was not to try the great question of the scruples of clergymen of the Church of England, which they had to determine by the proposition now before the Committee, but to let that point be tried on the other Amendments to which he had referred. He desired to approach that question with the greatest possible deference to the opinion of the large body of clergymen who had signed the declaration, but he did not think that this Amendment afforded the best opportunity for discussing it, and he hoped the hon. Baronet would withdraw his proposition and take the discussion on this important matter on one of the other Amendments before the Committee.


said, he rose to express his thanks to the hon. and learned Attorney General for the calm tone in which he had approached this question; but he could not help thinking that the Amendment now before the House offered the least invidious mode of effecting the object in view. It would avoid the possibility of the clergy in one place taking a different course from the clergy in another, and all the inconveniences to which such a conflict of practice would give rise, by leaving one clergyman popular with one set of persons and unpopular with another, for that for which his neighbour would be popular with those in whose eyes he was unpopular, and vice versa. As the hon. Baronet the Member for the University of Oxford observed, this country will have sooner or later to come to the principle of the civil marriage; why then not now admit this instalment? As to the picture which the hon. and learned Attorney General had drawn of the man who having been divorced in early life, and afterwards not wishing to betray this fact in his history, got married in church, he must observe that he cannot but think that his right hon. Friend who drew the words had purposely adopted such moderate language as would not render such a union void, however contrary to law it might be in its performance. Such a case would be on all fours with what every one who attended to the condition of the people knew was not uncommon, a minor by false pretences obtaining a marriage licence, representing himself to be of age. The person committing this act rendered himself liable to punishment, and yet his marriage stood good—fieri non debet sed factum valet. He had unlawfully procured a lawful wife. So in the case which the hon. and learned Attorney General drew, it must be observed, that the man, who could conceal from the future partner of his life so grave a circumstance in his career, could not be a man of very refined feelings or high honour. In fact the analogy was complete. For such an exemption as that now claimed there was abundant Parliamentary precedent, in a question referring to a change in the law of marriage. In the year 1849 the right hon. Member for Buteshire (Mr. S. Wortley) carried a Bill through that House for legalizing marriage with a deceased wife's sister, in which was contained a clause exempting clergymen from penalties for either celebrating or refusing to celebrate such marriages. The Bill passed through the Commons and was lost in another place. Well, the year after, the same right hon. Member re-introduced his Bill, which again passed the Commons; but in this Bill he made still further concessions to the clergy, and instead of the clause of the year before—similar in principle to that before the House at present—he introduced one to maintain the discipline of the Church, as before, and thus prohibit clergymen from celebrating such marriages, and the House upheld him in this still larger boon to the Church. What was therefore now asked for was a concession to the Church less than that which the House of Commons in 1850 thought it right to concede.


said, that the able argument of the hon. and learned Attorney General had convinced him that this Amendment would accomplish too much. By adopting it the House would plainly state that it meant to continue in the course which had been too long followed, of considering marriage merely as a civil contract. He was afraid that in providing against the evil consequences of the crime of adultery, Parliament would be lending a vital sanction to its commission which the Church Catholic had universally refused. He hoped that the House would not thus separate itself from the influence of Christianity—an influence which ought to be upheld as a corrective against the dangerous tendencies of the Bill. The Church had mercifully modified the doctrine of iudissolubility of marriage to meet the weakness of human nature. He trusted that the Committee would do nothing which might endanger the connection between Church, and State, or, if they preferred the expression, between the State and Christianity; and that they would show as much respect for the conscientious scruples of clergymen of the Church of England as had already been exhibited for those of Dissenters and Roman Catholics.


said, he considered the argument of the hon. and learned Gentleman unanswerable, and he should, therefore, oppose the Amendment, because it would be unjust to punish an innocent husband, and still more an innocent wife, by refusing them remarriage except in the office of a registrar.


said, although he could not but compliment the hon. and learned Attorney General upon the singular ability and moderation with which he had conducted his argument upon this occasion, he must, nevertheless, dispute the position of the hon. and learned Gentleman, that by the adoption of this Amendment the House would deliberately express the opinion that, according to the doctrine of the Church of England, marriage was indissoluble. On the contrary, the Amendment kept out of sight all allusion to the doctrines or discipline of the Church. The Bill itself compelled them to discuss marriage, divorce, and remarriage as matters of purely civil concern. The other objections which had been urged against the Amendment of his hon. Friend by the hon. and learned Attorney General were not, he thought, of that magnitude to induce the Committee to decline further consideration of the subject. There was one objection taken by the hon. and learned Attorney General which he did not clearly understand, and that was, the objection which he had taken to the words of the clause as they stood in an affirmative sense, while he had laid greater stress upon certain negative words, which, he said, ought to be introduced in order to carry out the object of his hon. Friend. Now, the whole argument of the hon. and learned Attorney General had proceeded upon the assumption that it was necessary that those negative words should be inserted, and he was bound to admit that he had never heard any argument more clear or comprehensive than that by which the hon. and learned Gentleman had demolished those words. The Committee, however, must remember that the suggestion of the insertion of those words had not emanated from his hon. Friend, but from the hon. and learned Attorney General himself. Well, then, the hon. and learned Attorney General had referred to the case of Dissenters, and had stated that they would not, if they came within the operation of this clause, be able to have the ceremony performed according to their own rites; but he thought that his hon. Friend had clearly pointed out that, under the provisions of an Act which was passed last year, the members of every Dissenting Communion had full right, after the marriage in the registrar's office, to have a religious ceremony performed in accordance with their religious persuasions. He did not think, therefore, that the clause would have that influence upon Dissenters which the hon. and learned Attorney General appeared to suppose. For his own part, he considered that the Dissenters had almost an equal interest with members of the Church in the matter, and he had not been at all surprised that they had joined in petitioning aginst certain clauses of the Bill. He would, however, wish particularly to direct the attention of the Committee to the main point at issue, which was, whether the hardship which would be inflicted upon those unfortunate persons who, with no fault on their side, had suffered from the commission of adultery, was so great as to outweigh all the advantages which might arise from settling the question in a manner which would be in accordance with the feeling and the opinion of a great majority of the people of this country. For his own part, he considered that the advantages would outweigh the hardship which would be inflicted, and he should be glad to see the Committee settle the question in an amicable way and in accordance with public feeling and opinion.


remarked, that he considered it advisable to withdraw the Amendment, and to allow the Committee to proceed to the discussion of one of the Amendments which it was intended subsequently to propose. The Committee would find, that if facilities were afforded for the solemnization of marriage before a registrar, it would lead to the neglect of that religious sanction of the ceremony which they must all desire to promote. Besides, he did not think it right that the innocent parties to a suit for divorce should be compelled to forego that sanction, and have the brand affixed to them that they were so degraded as to be unfit to participate in the ordinary ceremonies of the Church; and, while he was disposed to pay the utmost respect to the conscientious scruples of the clergy, he should venture, for the reasons which he had stated, to suggest to the hon. Baronet the Member for the University of Oxford (Sir William Heathcote) the expediency of withdrawing his Amendment.


said, if the Amendment were persevered in he should feel it to be his duty to vote for its adoption, although he could not help regarding it as a hardship that innocent parties should not be enabled to secure for the marriage contract the benefit which was to be derived from its solemnization in accordance with the ordinary rules of the Church.


said, he would express a hope that the Committee might be able to come to a decision upon the question before them without any party being entitled to claim the victory. He found that 11,000, or two-thirds of the whole body of the clergy, had petitioned respecting this clause, and he was sure that the conscientious scruples of such a body of men would not be ignored by the Government.


observed, that he had hitherto been a silent, but by no means an indifferent participator in the proceedings which had taken place in reference to the Bill. He had been so, because the subject with which it proposed to deal was one, in his opinion, of a most difficult character. He now rose, however, to urge the withdrawal of the Amendment, to which he objected, because it included the innocent as well as the guilty. If it had been confined to the guilty it should have had his support; but he could not assent to inflicting great hardship upon those who were entirely innocent. He believed that divorce was not only permitted, but, by implication, was commanded, by the Word of God, in the case of adultery, but in that case alone. And when there was both Scriptural and Parliamentary right to have a marriage declared null and void, it would be most unfair to debar innocent parties from having their marriages solemnized by the Church. He therefore trusted that the hon. Baronet would withdraw his Amendment, and allow the question of relieving the conscientious scruples of the clergy to be raised on the Amendment of his right hon. Friend the Member for the University of Cambridge (Mr. Walpole). He hoped and believed that the Committee would grant this boon, which was so earnestly asked by the clergy, and which he thought it was the imperative duty of Parliament to grant.


said, he also would join in the general request that the Amendment should be withdrawn, in order that the sense of the Committee might be taken either on the Amendment of his right hon. Friend (Mr. Walpole), or that of the gallant Member fur Harwich (Major Warburton).


said, it appeared that one part of the Amendment, which was directed towards the discouragement of the remarriage of divorced persons, was not generally acceptable, and that the other part, which proposed to relieve the clergy, met with considerable favour. In the opinion of many hon. Gentlemen the latter question was more capable of being advantageously raised on other Amendments, and he was, therefore, ready to withdraw his Amendment to make room for them.

Amendment, by leave, withdrawn.


said, he would submit to the Committee that there would be little practical inconvenience from the clergy being exempted from the compulsory solemnization of the marriages of divorced persons, as many of them might be willing to celebrate those marriages; and if not, the registry office would be still open. The condition of a clergyman of the Church was different from any other individual, inasmuch as he could not recede from the office which he assumed, and it should be also recollected that no clergyman at the time of taking orders, was aware that he was about to incur this responsibility, because it was, for the first time, about to be made part of the written law of England that divorced persons might marry again. He would appeal to members of the Church of England to protect the feelings of their clergy as they would protect their own, and to those who were not members of the Church of England, in the name of religious freedom, to protect the feelings of the clergy, remembering that their forefathers knew, only too well, what it was to suffer for conscience' sake the pains and penalties of the laws of England, He begged to move the Amendment of which he had given notice, adopting an Amendment of the noble Lord the Member for Marylebone (Viscount Ebrington) which would protect the clergy in case of their solemnizing, as well as in the case of their refusing to solemnize, these marriages.

Amendment proposed, at the end of the clause to add the words Provided always, and be it Enacted, That no Priest or Deacon shall be liable to any suit, penalty, or censure for refusing to solemnize the marriage of any person who shall be divorced by virtue of this Act.

Question proposed, "That those words be there added."


said, the claim of the clergy was a claim of justice. Could any candid or impartial man, looking attentively through the marriage service of the Church of England, as settled by the Act of Uniformity, conscientiously say that every clergyman could read it over persons one of whom was divorced? It commenced with a solemn invocation to the parties, as in the presence of Almighty God, that they would declare any cause or impediment to their marriage, and towards the conclusion, it pronounced marriage to be so constituted by Him that it could never be dissolved. The words were unequivocal and unambiguous, and a minister of the Church of England might justly accept them in their literal form, without explanation or modification. Let them consider the position of a minister who had to read that service over two of his parishioners if he had previously read it over one of them, and knew that he or she had committed adultery and violated the marriage contract, Could that clergyman, with any satisfaction to his conscience, invoke that person, as in the presence of the Almighty, to declare whether there was any lawful impediment to his remarriage? He was persuaded that a great majority of the clergy would feel that they were making a mockery of the marriage service if they were to read it over parties who had been divorced. A plain appeal was made to the justice of the Legislature. The Rubrics of the Church were held to be engrafted on the Act of Uniformity, and, by them, a minister was compelled, not to read any service he pleased, but to read the particular marriage service prescribed by the Church, over all persons whom he joined in marriage. Now, whereas the marriage service was framed at a time when marriage was held to be indissoluble, the Legislature was now asked to introduce an entirely new state of things, and to declare the dissolubility of marriage. In these circumstances they were bound to take one of two alternative courses, either to modify the marriage service of the Church, or else to give the clergyman an option as to whether he would read it or not. It was idle at that period of the Session, to think of qualifying the services of the Church, and they were, therefore, forced to adopt the other course of saying that those clergymen who conscientiously objected to reading the existing marriage service over persons who had been guilty of adultery should not be compelled to do so. No person could look at this question without feelings of apprehension. The clergy, no doubt, would be, as a body, most reluctant to act in opposition to the law of the land; but, on the other hand, he knew there were large numbers with whom it would be a matter of conscience, and who would consider themselves forced to determine whether they were to respect first the law of God or the law of man. That was not a fair position in which to put the clergy of the Church of England. Let it be remembered that Baron Von Gerlach, in his speech to the Prussian Chamber, alluded to the fact that the Prussian clergy, without the sanction of the Church, would not solemnize such marriages, although enjoined to do so by the law of the land. We were, therefore, not without experience. He thought it was extremely desirable, also, as a matter of mere policy that the clergy of the established Church should have the option, as the ministers of every Dissenting denomination had the option, of giving or withholding the religious blessing upon the remarriage of divorced persons. Baron Von Gerlach remarked that latterly, since the clergy had refused to marry divorced persons, there had been a most remarkable diminution in the number of divorces in Berlin, and he attributed that diminution to the course taken by the ministers of religion. Now, whatever might be our opinion of the probable effects of the present Bill, nobody could deny that its powers might be abused; and surely if we could prevent men, by a religious influence operating upon their minds, from making a bad use of the liberty which it was now sought to confer upon them, we ought to avail ourselves of every means of accomplishing that object. That about three-fourths of the whole clerical profession had joined in a memorial to Parliament was a striking fact, which he was sure the Government, who were inclined to respect the feelings of the country, would not overlook or underestimate. It had been said that the clergy never made any difficulty before. That was true; but the reason was, that the question was now raised for the first time. From the time of the Reformation there had been altogether about 300 divorces. It was exceedingly improbable that there had been more than 100 remarriages, and, of these, he ventured to say, that not above 50 had taken place in this country. The probability was that in many cases the clergymen did not know that the parties had been divorced, and it was quite absurd to say that the few instances which might have occurred of clergymen negligently reading the marriage service over parties who had been guilty of adultery in former marriages formed any precedent against the claim now made by the whole profession. Now that it was proposed to make a general law the clergy came forward with a demand to have their conscientious scruples respected, and he earnestly trusted that their appeal would not be in vain.


said, he could not concur in the views expressed by the last speaker, though he was happy to find that they coincided in the Votes they should give if the Government, as he hoped they might not, resisted the Amendment. He did not share in the opinion of the hon. and learned Gentleman with respect to the marriage service, nor did he believe that the scruples he had mentioned were so universal among the clergy as he supposed. The conscientious scruples of the clergy were undoubtedly entitled to respectful consideration, but he was not an advocate of priestly domination, and therefore held that the House had power to pass laws which were binding upon the clergy. At the same time, things which were lawful were not necessarily expedient, and he had a grave objection to creating professional martyrs. He thought the best way to cut the ground from under the feet of all such persons would be to remove all reasonable grievances. He felt, therefore, that it would be unwise, as well as cruel, to encumber a useful measure with any clauses pressing heavily upon certain clergymen, as would be the case if no Amendment were adopted. They were bound to recognise and weigh the conscientious scruples of clergymen who entertained opinions that would prevent them from willingly marrying divorced persons as far as they could do so without danger to the State. At the same time in recognizing those scruples they should take care to avoid putting into the hands of the ecclesiastical authorities a weapon which would enable them to fly in the face of Parliament and to persecute such of the clergy who might feel inclined to comply with the provisions of the Act of Parliament.


wished to know what practical probability there was of any particular clergyman being made a martyr in consequence of the act of the Legislature. It was not likely that a person who had been divorced, and who wished to marry again, would go to a clergyman who was known to entertain a repugnance to such marriages, while there would never be any difficulty in finding ministers who felt no such scruples. A person who had been divorced would not apply in a quarter whence he must expect refusal, and thus revive the publication of his misfortune, He (General Thompson) felt strong objections to forcing discreditable people to have recourse to the civil ceremony, and could not see why the civil ceremony should receive any artificial slight. He was inclined to believe that under it, a system of something like concubinage might arise, if pains were taken to assign that form of marriage to persons it was sought to discredit.


said, that as a constant supporter of the Government through all the stages of this Bill, he would express a hope that the hon. and learned Attorney General would accept this Amendment.


said, he was desirous of doing nothing that would wound the conscientious feelings of the clergy, but at the same time he thought this question must be regarded in another light also. He could not forget that the parish churches were not the property of the clergy, but of the parish, and a rector or vicar who entertained peculiar notions had no right to compel his parishioners to adopt those notions or to debar them from the use of their own church. If a rector or other reverend authority in a parish objected to perform such marriages as were referred to by the clause now under discussion, there was no reason why he should be forced to do so against his conscience, but at the same time he ought not to be allowed to prevent his curates from officiating if they did not share his peculiar ideas. The Amendment seemed to be intended to meet the scruples of those clergymen who had gone already half-way over to Rome, but who were unable to bring themselves to relinquish the temporalities of the Church of England. Some of these men, it appeared, objected even to remarrying the innocent party, and the Amendment would enable them to indulge their semi-popish notions that marriage was a sacrament. If the clergy were entitled to relief it should be granted, but only so far as justice required. Though he admitted that new duties should not be imposed upon a cler- gyman by Act of Parliament if those duties were repugnant to his conscientious opinions, he must at the same time claim the right to prescribe the conditions upon which the temporalities of the Church should hereafter be held; and whilst he would not interfere with the present position of clergymen, he thought they ought not to be allowed to receive other preferment without acknowledging and yielding obedience to the law of the land. It was true the Legislature ought not to interfere with the theological views of the clergy, but it had a right to interfere with and to regulate the disposition of Church property. He therefore submitted for the consideration of the House, whether a provision should not be introduced, limiting the exemption of the clergy from their obligation to perform the marriage twice to such preferment as they at present hold. The rights of the laity should receive as much consideration as the scruples of the clergy. If a clergyman had insuperable objections to perform what an Act of Parliament required him to do, there should be a provision in the Act to enable the parishioners to call in another minister who entertained no such scruples. It was an every-day practice for clergymen to allow other ministers, friends of the parties, to celebrate marriage in their churches, an example which might be followed, as he had suggested, with advantage of all parties. He would entreat the Government not to be led away by their feelings of respect towards the Church; and, if they adopted a course that was just towards the clergy, to take care, at the same time, not to trench upon the rights of the laity.


The hon. and learned Gentleman who has just spoken says—and I am sorry he has introduced so undesirable a tone into this discussion—that, though it might be right to support a clause that would not be oppressive to the clergy, we must at the same time protect the consciences of the laity. That, he will permit me to observe, has been the spirit of our legislation down to this period. I have always had in view these two objects, and there is nothing in the Amendment now before the Committee that is in any way contrary to such a view of my duty. The hon. and learned Gentleman must forgive me for saying that I am not going to support the Amendment on any such imaginary ground as he supposes—namely, in order to allow any clergyman to remain in possession of all his rights and privileges as a minister of the Church of England, while he may secretly belong to another communion. I think the hon. and learned Gentleman will give me credit for saying, after the part I took in the Second Reading of this Bill, that I do not support the Amendment on the ground that marriage is indissoluble either by the law of God or by the law of the land. That question I have found very distinctly answered in the discussion of one of the most important points that could arise—namely, whether the adulterous parties ought to be allowed to marry again; for when it was proposed in 1809, as one of the Standing Orders of the House of Lords, that a clause should be introduced into any Divorce Bill prohibiting such marriages, the Archbishop of Canterbury, speaking not only for himself but for the whole bench of Bishops, said in the face of Parliament that there was nothing, in the opinion of the right rev. Bench, in the law of God contrary to those marriages, and that if they had been contrary to the law of God the Bishops would long before have interposed, if possible, to prevent them. I therefore take that statement as justifying me in saying that I proceed on no such grounds as that marriage is indissoluble. I believe that for the one offence of adultery, and for that one offence only, marriage both by Scripture and by reason ought to be capable of dissolution, and I further believe that it remains with Parliament to determine what tribunal shall be empowered to declare such dissolution. Having disposed of those observations, I may be asked to state on what particular grounds I support the Amendment now before the Committee. The hon. and gallant Member (Major Warburton) put his notice on the paper about the same time that I put mine, but, as he took some precedence of me in doing so, I willingly gave way to allow him to express his views to the House. I need hardly say that I am quite ready, in supporting his Amendment, to give the whole credit of effecting the object it has in view to the hon. and gallant Gentleman, or to the Government, if they will only introduce a clause that will prove acceptable to all parties. I support the Amendment on this ground—and I think it is one which it is impossible to controvert—that we have no right to impose on any person or any class of persons in this country the painful dilemma of obeying or disobeying one of two laws. Why do I say that that ground is unanswerable? Suppose this Bill pass into a law, the remarriage of the parties to whom it has reference will be expressly allowed by statute. The remarriage of the parties being expressly allowed by statute, any person would be at liberty to go to the clergyman of a parish and insist on his marriage, though he had been divorced, and not only insist on his marriage, but insist on its being performed according to the rites and ceremonies of the Church of England. Suppose the two adulterous parties go to the clergyman of a parish to be married, he requires of them to state in the most solemn manner whether there is any impediment to the solemnization of such marriage. In the words of the form laid down for this use, he says— I require and charge you both, as ye shall answer at the dreadful day of judgment, when the secrets of all hearts shall be disclosed, that if either of you know any impediment why ye may not be lawfully joined together in matrimony ye do now confess it. Then what does the Rubric say—the Rubric being a part of the Book of Common Prayer, which every clergyman is here bound to observe? It says distinctly— At which day of marriage if any man do allege and declare any impediment why they may not be coupled together in matrimony by God's law or the laws of this realm, and will be bound and sufficient securities with him to the parties; or else put in a caution (to the full value of such charges as the persons to be married do thereby sustain) to prove his allegation, then," and I call particular attention to what follows, "the solemnization must be deferred until such time as the truth is tried. Now, if you were to pass your Bill in its present form this may take place. If two adulterous parties demand marriage of the clergyman of a parish, any member of the Church, or any person who happens to be in the church, may object to the marriage as being contrary to the laws of God, and if such objection is taken the clergyman has no alternative, except to solemnize the marriage according as this law directs, or leave the marriage to stand over until "such time as the truth is tried," and thus hang the matter up in the Ecclesiastical Court. That is not a position in which we ought to place those parties. It is not that you require clergymen to marry parties as if it were merely a civil contract imposed by law, for then I should have agreed with the hon. and learned Attorney General, that when Parliament has passed a law we should require obedience to that law, though I say that before you pass a law you ought to look to the consequences of your Act and see that you are not imposing on any person or class of persons something That will be a strain upon their conscience in the discharge of their duty. If in the case of the adulterous parties it was only to be declared that the parties were married by civil contract there could be no objection raised; but what you are saying by this Bill is, that clergymen must use a form of words in giving effect to that contract which nobody who reads the service can say will be applicable to such a marriage. It may be said this is an exception, an exemption on privilege that is asked for, but it is neither the one nor the other. The clergy will be bound by the statute of Charles II., which requires them to perform the service in a particular manner, inapplicable to the present case as well as to this statute when it comes into operation; and will not this, I ask, cause an undue strain upon the conscience of the clergyman who thinks that such marriages are contrary to the law of God? How have you dealt with these cases before? How have you acted in the case of the Quakers? Supposing you were now passing a particular kind of oath to be taken by Her Majesty's subjects, would you think of making that oath applicable to the Quakers? What took place in the case of the Oxford and Cambridge University Bills? The members of those Universities and colleges were bound to take certain oaths with reference to the alteration of Statutes and so forth, and you appointed Commissioners with power to alter statutes in cases where the members of colleges could not do so, thus preventing any strain upon the consciences of the latter. Take, also, the numberless cases that have arisen with respect to the burial of persons who have committed the crime of self-murder. Till the reign of George IV. a felo de se was by law buried in unconsecrated ground, on cross-roads, and with stakes driven through his body. The Act of George IV. altered that law, and declared that the felo de se should be buried in the consecrated ground; but in a clause added to that Bill it was provided that no clergyman should be compelled to perform the burial service over him. Last year Parliament passed the Marriage and Registration Act, and in it were inserted two clauses which exactly laid down the manner in which these marriages ought to be performed. By the 11th clause it was provided that parties entering into a civil contract might apply to the minister of that denomination to which they belonged for the use of his chapel, and that minister might, if he chose, refuse it to them; and in the 12th clause it was provided that the parties might apply to a clergyman of their own persuasion to have the religious ceremony pronounced over them; but the clause neither said that he should not be obliged to perform that ceremony nor that he should, but simply that if he thought fit he might perform the ceremony after a civil contract had been entered into. This is exactly the privilege which I wish to be given to the clergy of the Church of England in this case. I appeal to the Government not to take a hasty step in this matter. I never knew an instance in which the Government held so completely the balance between what ought to be done and what ought not, as they do on the present occasion. An immense responsibility rests upon them and I am perfectly convinced that Parliament is prepared to follow their guidance if they direct their minds to the subject with a sincere desire to adopt the proper course. I hope they will consider, on the one hand, the oppressive manner in which the Bill will act unless some protecting clause is inserted on behalf of clergymen; and, on the other, will not deprive divorced parties, who wish to marry again, of the opportunity of having the religious ceremony performed, leaving the question as to where or by whom that ceremony should be performed for subsequent consideration. It is for the sake of the peace of the Church that I hope the Government will consent to this Amendment. Depend upon it, if you pass this proviso, you will always find some clergymen who will not be unwilling to celebrate these marriages; but if you don't, there are many clergymen who will look upon it as a strain upon their consciences which ought to be put upon the consience of no one.


During the whole of the discussions on this Bill I have never risen to address the Committee with a deeper sense of the responsibility of the office committed to me. I am most happy to state at the outset that I am authorized by my noble Friend at the Head of the Government to propose a qualified acceptance of the Amendment; and the qualification which I shall have to submit to the Committee is one which I think will meet with the approbation of all parties. But in doing so I must humbly beg the attention of the Committee while I feebly endeavour to lay before them those considerations which have weighed with the Government, and which I think have not yet been presented to the Committee. And in the first place I would ask the Committee whether, in adopting the Amendment now before us, we are not about to introduce a qualification which, speaking with all respect, may prove a snare to those for whose service it is proposed. You are about to give the clergy an exemption and an immunity, and upon what ground? Upon the ground of the sin, guilt, and criminality of the charge affecting those who come before them with a request that a holy and religious ceremony may be performed. But if an exemption be granted on those grounds where are we to stop? Will the clergy not reason most consecutively from this exemption when they say, "You have exempted us from doing violence to our consciences in this matter, but why do you leave us under the necessity of submitting to the violation of our consciences in others? Take the case of a man and woman presenting themselves before the altar for the solemnization of this sacred rite, the woman bearing on her body the palpable and prominent marks of illicit cohabitation; suppose them coming fresh from the bed of fornication to solicit the intervention of the clergyman; suppose some notorious freeliver, some gross, libidinous man, who has shaken off all feelings of decency, and who by his past life has outraged all the principles of morality, presenting himself for the solemnization of this holy rite, what would be the feelings of the clergyman? That is the result which you must contemplate, if in any single instance you make up your minds to emancipate the clergyman from the overpowering authority of the law. You are about to trust the clergy with the fatal gift—fatal it will be to the peace of many—of exercising the right of private judgment as to whether or not they shall dispense those holy rites which they have been commissioned to administer. This will pervade all the services of the Church. Take the burial service or the baptismal service. The Church of England clergyman will reason most consecutively according to his impression of the great principle which we are about to introduce into the Bill when he says, "I must decline to read the burial service over an unbaptized man—how can I commit to the earth 'in the sure and certain hope of a joyful resurrection' the body of a man who I know to have died in the commission of some great sin?" Will not his argument be, "You have sanctioned by this Bill the right of appeal from your law to that law which is written in my own heart; that appeal I have a right to make, but if I have a right to make it in this instance I ought to make it in others?" The result will be that he will no longer be the minister of religion dispensing those holy rites in full trust and confidence that, as he knows not the heart of man, that heart may have been penetrated with repentance, that the notorious sinner, even the sinner of yesterday, may have had a new heart given to him, and that in so short a space of time he may have come into a fit state of repentance to receive those holy ceremonies. That is the humble trust, confidence, and assurance, with which each minister of religion now dispenses those holy rites. But you are about to take away from him entirely that ground of his ministration, and you are about to tell him—for if the exemption is good in this case it is good in all others—that he ought not to be a minister of religion dispensing the holy rites of the Church to those whom he believes to be unworthy recipients of them. Consider for a moment the responsibility which is thrown upon him with regard to the administration of the Lord's Supper. I cannot approach the subject without a deep feeling of the importance which attends the decision of this question. I cannot presume to set up my opinions or my view of the matter against those of so many eminent and deeply pious men, and of so many most competent persons as are here assembled; therefore, I express with the greatest diffidence the feelings which I entertain in my own mind, and if I give way, I give way not from conviction, but purely in deference to the united body of authority, and to the judgment of persons whom I must assume have weighed this matter well, and who, deeply feeling for the interests of the Church of England, believe that those interests, and the happiness, the peace, and the quiet of her ministers will be promoted by the introduction of this principle. Well, God grant it may be so! but, though it comes from a feeble voice, I warn you of the things that must follow in its train; and I beg you to pause before you give to the clergy of the Church a fatal gift, which may be the very fount and origin of that dissension, that discord, and that rending in twain which God forbid that we should ever live to see! Now, assuming that these matters have been well weighed, and that the great majority of the Members of the House are impressed with the convic- tion that it is the duty of the Government to give way to this feeling, I will tell you how far I have advised my noble Friend at the Head of the Government to meet the request which has been made by the supporters of the Amendment. Permit me to descend to some details, and to call your attention to the fact that the proposition of the hon. and gallant Major will deal with both the parties to the marriage, the husband and the wife, the innocent and the guilty, and that the words as they are proposed will not affect the third person, the adulterer, the chief author of the guilt, or the adultress. Now, assuming that you desire only to relieve the clergyman from the painful obligation of pronouncing these holy words and this blessing on those whom he supposes are not yet recovered or awakened from a state of deep guilt and sin, I humbly suggest to you the adoption of words which I will propose. If these are accepted, my noble Friend will agree to the Amendment of the clause, which, as so altered, will run thus:— Provided always and be it enacted, that no priest or deacon shall be liable to any suit, penalty, or censure, for refusing to solemnize the marriage of any person whose adultery or crime has been the ground of the dissolution of any marriage. Now, that will take in the case of the adulterer. Supposing the adultery is that of the wife, it will comprehend the wife and the adulterer, and neither the adulterer nor the adultress will have a right to demand the intervention of a clergyman for their remarriage. Then comes another consideration which my noble Friend desires, and I think with great reason and justice, should be regarded. It is that which was referred to by the hon. and learned Member for the Tower Hamlets (Mr. Ayrton). Suppose two persons apply to the rector of a populous parish in London requesting him to marry them, and he, knowing their relative positions, declines to do so; and suppose they say, "We have lived in your parish, and therefore must come to this parish church to be married; if you are unwilling to marry us there is another priest or deacon of the United Church who will do so, and therefore you must not refuse us the liberty of being married in the parish church." With these two qualifications, the latter of which I have not expressed, as it must be the subject of a well-worded proviso, it is the wish of my noble Friend to bow to the general wish of the Committee, if it is the general wish, and to give way to the feeling which is represented as being so general and prevalent among the clergy of the Established Church. From respect and out of deference and regard to them, and in the earnest hope—to which I may add my most sincere prayer—that this may not hereafter be the cause of evil or of dissension, but may lead to happy results instead of to the evil ones which it was anticipated would follow the refusal of the Government—in that hoping and trusting spirit this Amendment is now proposed by the Government.


said, he cordially joined in the expression of feeling which had been elicited by the manner in which the hon. and learned Gentleman had dealt with this grave and serious subject. He should hardly have risen were it not that he thought that the apprehensions of the hon. and learned Gentleman that this concession on the part of the Government might be a snare to the consciences of the clergy and might throw difficulties in the way of their performing many of the other ceremonies of the Church were not well founded. There was an essential difference between the cases to which the hon. and learned Attorney General had referred with respect to the performance of the burials and other services and that now under discussion. Every man who entered into the orders of the Church of England was obliged, before entering, to make himself well acquainted with the conditions upon which he was admitted, and therefore he had no right to complain that his conscience was affected by his having to perform any of the engagements which he undertook when he entered upon that solemn office. In this case, however, they were about to make a new law. Certainly there had from time to time been private Acts of Parliament—one, two, or three in a year—but they were now making a law of divorce, and while they were doing so they received a memorial from a vast number of clergymen stating that a strain was being put upon their consciences and requesting that it might be removed. The hon. and learned Gentleman himself must admit that between these cases there was a great gulf, and therefore, he (Mr. Henley) did not share in the hon. and learned Gentleman's apprehensions of future mischief. As to the case of a clergyman refusing to bury an unbaptized person, he was not aware that there was any law to compel him to perform the Burial Service in such a case. He did not know whether the Government wished the Committee to come to an immediate decision on the amended question. It would have been convenient if their determination had been announced a little earlier, but their proposition, from the spirit in which it was made, deserved every consideration, and he would beg leave to suggest that a short delay might greatly conduce to that most desirable result, an amicable settlement of this matter. He hardly knew what was the feeling of his hon. Friends near him, but, for his own part, he was quite ready to accept the first part of the proposal made by the hon. and learned Attorney General, and he was content to wait until the Report to decide the question of the use of the parish church, as referred to by the hon. and learned Member for the Tower Hamlets (Mr. Ayrton). The subject was one which required careful consideration, and, for his own part, he would be glad to accept the proposal of the Government, which went a great way towards removing some of the objections which were entertained to the Bill.


said, that the hon. and learned Attorney General did not appear to him to take the same view which he had taken, and which was taken by the clergy, with regard to the difficulty under which they would be placed. The hon. and learned Gentleman had warned the Committee against opening a door which it would be difficult again to close, by giving the clergy the power of deciding whether they should in certain cases perform the rites of the Church, and he said that if they were allowed that power with regard to one ceremony of the Church they might assert a claim to exercise it with regard to others. Now, he saw no ground for any such apprehension. The position of the clergy, if the Amendment of the gallant Officer were agreed to, would be, not to inquire whether a person was too wicked to take part in a religious ceremonial, but simply to ascertain whether a certain fact had occurred. The word proposed to be added to the clause by the hon. and learned Attorney General introduced the very principle which he himself so strongly deprecated. According to those words a case like the following might occur:—An unmarried man might commit adultery with a married woman, and the husband of the woman might obtain a divorce. Suppose, then, that the man presented himself to be married according to the words proposed to be introduced by the hon. and learned Attorney General, the clergyman would use a certain amount of discretion as to the wickedness of the parties, instead of simply inquiring into the fact whether or not there had been a divorce. Now, that might be right or wrong, but it had been denounced by the hon. and learned Attorney General as a dangerous principle, and it was not the principle upon which the Amendment was founded. It appeared to him, therefore, that the words proposed to be added to the Amendment by the hon. and learned Attorney General would include the case of a man who had committed adultery, but who had never been divorced, and that they would give rise to great confusion.


said, he thought that according to the Amendment, and the words proposed to be added by the hon. and learned Attorney General, it would form no part of the duty of a clergyman to act upon what he had heard privately, or to use his private judgment, but all that he would have to look to would be whether there had been a sentence of divorce passed by the Court, and if there had been he would not be compelled to marry the parties.


said, that in consequence of what had been said at the six o'clock sitting he would move an Amendment almost in the very words of the former Motion of the right hon. Gentleman the Member for the University of Cambridge. That no clergyman in holy orders of the United Church of England and Ireland shall be compelled to solemnize the marriage of any person whose former marriage may have been dissolved upon the ground of his or her adultery.


said, he did not think that the proposal of the hon. and learned Attorney General would satisfy the objection entertained by the great body of the members of the Church of England, but he would leave his Amendment in the hands of the Committee; and if it was their pleasure that it should be withdrawn, he would be prepared to withdraw it.


begged to suggest to the learned Attorney General the addition of the words, "during the lifetime of the innocent party."


said that, by the late alterations in the law of marriage, marriage had been made a civil contract, and therefore, he could not see why any positive obligation should be imposed upon the clergy of solemnizing matrimony between any persons whatever.


said, he must express a hope that the Committee would not be called upon at once to decide upon the merits of an Amendment so important as that which was embodied in the proposition of the hon. and learned Attorney General.


asked, whether it was the intention of the hon. and learned Gentleman to take the sense of the House upon the proviso of which he had given notice in Committee, or upon the bringing up of the Report? [The ATTORNEY GENERAL: In Committee.] He wished also to suggest to the hon. and learned Gentleman the propriety of confining the use of the parish church under the operation of the proviso to parishioners alone, and of not allowing strangers to the parish to have access to it for the purpose of solemnization of marriage.


said, he wished to say a few words by way of personal explanation with respect to a statement which he had made the previous day, to the effect that under our forms of ecclesiastical procedure the parties to a suit were examined upon oath, except in reference to the fact of adultery. The correctness of that statement had been denied, but he found that the authority of Dr. Lushington went to establish its accuracy. The hon. and learned Gentleman then read a passage from the recorded testimony of Dr. Lushington upon the subject in support of his assertion.

The House resumed. Committee report progress, to sit again this day at six o'clock.